Leake v. Prudhomme Truck Tank Service, Inc.

238 So. 2d 4, 1970 La. App. LEXIS 5170
CourtLouisiana Court of Appeal
DecidedJune 30, 1970
DocketNo. 7983
StatusPublished
Cited by2 cases

This text of 238 So. 2d 4 (Leake v. Prudhomme Truck Tank Service, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Leake v. Prudhomme Truck Tank Service, Inc., 238 So. 2d 4, 1970 La. App. LEXIS 5170 (La. Ct. App. 1970).

Opinion

BLANCHE, Judge.

James R. Leake was the owner of a gasoline bulk plant located in the Town of St. Francisville where he was engaged in the sale and distribution, in bulk, of gasoline, kerosene, diesel fuel and related products. On the morning of February 13, 1968, a fire occurred at the plant at a time when premium gasoline was being pumped into one of Leake’s storage tanks by one Robert Paul Bertinot, the driver of a tank truck owned by Prudhomme Truck Tank Service, Inc. The fire completely destroyed the plant as well as the tank truck. Leake had obtained insurance on the plant property with Hanover Insurance Company in the sum of $5,000, and after the fire Hanover paid under its policy the full amount of said policy and was subrogated to the extent of their payment. Thereafter suit was instituted by Leake and Hanover against Prudhomme and its employee Bertinot seeking damages totaling $43,406.69 for Leake and $5,000 for Hanover. Prud-homme, after answering the suit, filed a reconventional demand against Leake for the value of their tractor and tank trailer and for the loss of revenue as a result of its ruin.

Trial was concluded on October 29, 1968, and the trial court on June 27, 1969, gave judgment to the plaintiffs as prayed for and rejected the reconventional demand filed by Prudhomme. Though this judgment was rendered on June 27, 1969, the Court did not sign a final judgment until September 5, 1969, when, after written reasons assigned, the Court reduced the award in favor of plaintiff Leake to $38,618.69.

The trial judge adopted the theory of plaintiffs’ expert witnesses, Dr. Oscar W. Albritton and Dr. Edwin R. Chubbuck, as to the cause of the fire. In rejecting the defendants’ claim that the fire was caused when plaintiff’s bulk tank overflowed, the trial judge branded the only witness to the fire, namely, defendant Prudhomme’s driver Robert Bertinot as unworthy of belief. Our review of the evidence leads us to conclude that not only was the evidence insufficient to sustain a judgment in favor of the plaintiffs but that plaintiff Leake was guilty of negligence which caused the accident. We further find that Bertinot was not guilty of negligence and additionally find that the Court’s conclusion that he was unworthy of belief was unjustified and manifestly erroneous. We reverse the judgment of the trial court in its entirety.

In the early morning of February 13, 1968, Bertinot arrived in St. Francisville with a load of premium gas to be delivered to Leake’s bulk plant. Upon arrival, he contacted Leake’s manager, R. M. (“Sonny”) Watson, for the purpose of opening up the plant in order for Bertinot to make [6]*6the delivery. Bertinot drove to the plant and was met by Watson, and after the necessary connections from the trailer tank to the line leading to the premium tank were made, Bertinot began the pumping operations from the trailer tank to the premium tank. In order to pump the gas up to the premium tank, it was necessary to keep the diesel engine of the truck operating in order to power the pump on the trailer tank. After Watson had opened the plant and assisted Bertinot, he then returned to his home, leaving Bertinot alone at the plant.

At this point a description of the plant and its surroundings is appropriate. The plant consisted primarily of five elevated storage tanks and two small buildings used as a warehouse and a garage. The warehouse and garage fronted on Ferdinand Street. A gravel parking area extended from the edge of the street to these buildings and was designed to permit tank trucks to pull up close to the warehouse and loading dock. The warehouse was a metal building which measured approximately twenty-one by twenty-three feet. It was supported by steel beams, elevated from two to three feet above ground level and rested on concrete piers. Through the warehouse ran the bank of pipes and valves which controlled the loading and unloading of storage tanks on the premises. Immediately adjacent to the right of the warehouse was a wood structure that served as a garage. It was constructed on a concrete slab. Behind these two buildings and to the north were five large cylindrical storage tanks which were laid out in three parallel rows. The row on the west was composed of two tanks laid end on end and separated by a space of some eighteen to twenty inches. The forward of these tanks was the diesel tank and behind it was the premium tank. The east row of tanks was similarly situated. In the center was one huge 17,000 gallon tank in which regular grade gasoline was stored. Each of these tanks was elevated some six to eight feet above ground level and rested in a saddle or cradle of steel supports which in turn rested on concrete footings. Just north of the diesel tank in the east row, and as previously mentioned, approximately one and a half feet away, stood the tank which was being filled at the time of the fire with the premium gasoline.

Admitted into evidence are a contour map and photographs which depict the lay of the land on which the bulk plant was situated. Mr. Raul Gonzalez, a civil engineer, prepared a contour map showing the location of the bulk tanks involved, the place where the trailer tank was situated as well as the drain to the street. Photographs reflect the remains at the bulk plant after the fire and the location of the diesel tank and the premium tank which overflowed and which was immediately to the rear of the diesel tank. Another photograph reflects the property as it appeared from the rear to the front and shows the drainage of the land to be toward the location of the truck. Another photograph reflects the slope of the property around the diesel and premium tanks to be to the west toward the drainage gully or swale which leads from the front of the property. Another photograph was taken from the high bluff in the rear of the property on the northern side and gives an aerial view of the site after the fire was extinguished. The contour map prepared by Mr. Gonzalez reflects that there was a distance of fifty-five and a half feet from the premium tank to the trailer tank, and the elevation at the premium tank was two feet higher than the elevation at the trailer tank. The photographs as well as the contour map show beyond any doubt that the drainage was from the rear of the property to the front and toward the drain which was located near the street and in the parking area where the truck and trailer tank were located.

Mr. Gonzalez testified that the ground area at the location of the bulk plant sloped from the rear to Ferdinand Street and to the west toward Tunica Street. Additionally, he identified an indentation along the west side of the bulk plant which [7]*7was referred to as a “gully” or a “swale” and which was a drain for the purpose of carrying fluid from the rear of the bulk plant on the north side toward Ferdinand Street on the south. As the photographs will reflect as well as the contour map, this indentation or natural drain runs past the site where the trailer tank was located to a grating or drain and under the front wheels of the truck which had been brought to stop in this indentation.

The only witness to the fire was Robert Bertinot. After the pumping operation had commenced, he got into the cab of his truck and stated that after thirty-five or forty minutes he got out of the truck and climbed up on top of the trailer tank and looked inside for the purpose of checking how much fuel he had left. He estimated at that time there was approximately 1,000 gallons left in the tank so he got back into his truck.

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Related

Leake v. Prudhomme Truck Tank Service, Inc.
258 So. 2d 358 (Supreme Court of Louisiana, 1972)

Cite This Page — Counsel Stack

Bluebook (online)
238 So. 2d 4, 1970 La. App. LEXIS 5170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leake-v-prudhomme-truck-tank-service-inc-lactapp-1970.